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TMI Blog2019 (12) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... 63 is bad in law. 2. The Assessing Officer has already taken a possible stand in the assessment and therefore, merely because she did not take the alternate possible stand, the order does not become erroneous. 3. The learned Principal Commissioner of Income Tax ought to have appreciate that in order to invoke the provisions of Section 263 of the Income Tax Act, the twin conditions of the order being erroneous and prejudicial to the interest of revenue does not stand satisfied in this case. 4. The learned Principal Commissioner of Income Tax ought to have appreciate that the order is incapable of being revised, as it is a subject matter of appeal before the Commissioner of Income Tax (Appeals). 5. The learned Principal Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stamp duty should be deemed to be the full value of consideration received on such transfer. The assessee filed objections vide letter dated 14.12.2018 (objections of the assessee are produced at para 4 of the impugned order of the CIT). The gist of the objection is that the Assessing Officer had took a conscious decision that income arising out of transfer of sale of land is not a business income but income from transfer of capital asset, and therefore, liable for capital gain tax. According to the assessee, the Assessing Officer has taken a possible view and issuance of notice u/s 263 of the I.T.Act is bad in law. The assessee relied on the judgments of the of the Hon'ble Apex Court in the case of (i) Max India Ltd. 295 ITR 282, (ii) Ana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal. The learned AR reiterated the submissions made before the CIT. 8. The learned Departmental Representative, on the other hand, relied on the finding of the CIT. 9. We have heard the rival submissions and perused the material on record. The assessee had filed the return of income for assessment year 2014-2015 showing sale of property under the head `business income'. The Assessing Officer, while completing the assessment u/s 143(3) of the I.T. Act, held such disclosure by the assessee as sale of property under the head `business income' was to avoid the provisions of section 50C of the I.T.Act, which is applicable on transfer of long term capital asset. Accordingly, the Assessing Officer treated the sale of property as transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f long term capital asset, whereas section 43CA of the I.T.Act applies to transfer of asset (other than capital asset). Therefore, if the transfer of asset is to be assessed under the head `income from business' necessarily, the provisions of section 43CA of the I.T.Act would have application and the value of asset for the purpose of stamp duty valuation under the State Government laws would deemed to be the consideration received on account of transfer of such business asset. 9.2 The Assessing Officer had failed to take note of the provisions of section 43CA of the I.T.Act and the impact of such section in the instant case. As mentioned earlier, the assessee has already filed an appeal as against the assessment order holding the transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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